HARRIS TEETER SUPERMARKETS, INC. v. ACE AM. INS. CO., 2023 NCBC 68

STATE OF NORTH CAROLINA
FORSYTH COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
22 CVS 5279
HARRIS TEETER SUPERMARKETS,
INC., et al.,
Plaintiffs,
v.
ACE AMERICAN INSURANCE
COMPANY, et al.,
Defendants.
ORDER AND OPINION ON
DEFENDANTS’ MOTION TO
DISMISS AND MOTION TO STAY
1. 	THIS MATTER is before the Court on the 27 March 2023 filing of
Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction and Under the North
Carolina Declaratory Judgment Act (the “Motion to Dismiss”), (ECF No. 135 [“Mot.
Dismiss”]), and Defendants’ Motion to Stay (the “Motion to Stay”, and together with
the Motion to Dismiss, the “Motions”), (ECF No. 137 [“Mot. Stay”]).
2. 	The Court held a hearing on the Motions on 19 July 2023 (the “Hearing”),
(see ECF No. 206), and its Case Management Conference pursuant to Rule 9.3 of the
North Carolina Business Court Rules (“BCR(s)”) immediately following the Hearing.
3. 	For the reasons set forth herein, the Court GRANTS in part and DENIES
in part the Motions.
Offit Kurman, P.A. by J. Alexander S. Barrett and Kurt A. Seeber, and
Morgan, Lewis & Bockius, LLP by Gerald P. Konkel and Christopher M.
Popecki, for Plaintiffs Harris Teeter Supermarkets, Inc., Harris Teeter,
LLC, The Kroger Co., Kroger Limited Partnership I, and Kroger Limited
Partnership II.
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP by Agustin M.
Martinez, Jim W. Phillips, Jr., and Jennifer K. Van Zant, Clyde & Co
US LLP by Robert M. Mangino and Susan K. Sullivan, and Holwell
Harris Teeter Supermarkets, Inc. v. Ace Am. Ins. Co., 2023 NCBC 68.

Shuster & Goldberg, LLP by Andrew C. Indorf, Blair E. Kaminsky, Neil
R. 	Lieberman, 	Michael 	S. 	Shuster, 	and 	Daniel 	M. 	Sullivan, 	for
Defendants ACE American Insurance Co., ACE Property and Casualty
Insurance Co., and Federal Insurance Co.
James, McElroy & Diehl, P.A. by Adam L. Ross, and Kennedys CMK
LLP by Christopher R. Carroll, Tara E. McCormack, Christina R. Salem,
and 	Joshua 	S. 	Wirtshafter, 	for 	Defendants 	Allied 	World 	National
Assurance Co., Starr Surplus Lines Insurance Co., and United States
Fire Insurance Co.
Maynard Nexsen PC by James W. Bryan and Olivia F. Fajen, and
Skarzynski Marick & Black, LLP by Karen M. Dixon, for Defendants
American Guarantee and Liability Insurance Co., Steadfast Insurance
Co., and Zurich American Insurance Co.
Bennett Guthrie, PLLC by Joshua H. Bennett, and BatesCarey LLP by
Joshua A. Boggioni, Adam H. Fleischer, and Paige M. Houin, for
Defendants Aspen American Insurance Co., Great American Alliance
Insurance Co., Great American Assurance Co., Great America Insurance
Co., Great American Insurance Co. of New York, Great American Spirit
Insurance Co., and Westport Insurance Corp.
Teague Campbell Dennis & Gorham, LLP by William A. Bulfer and John
M. Little, and Skarzynski Marick & Black LLP by Cheryl P. Vollweiler,
for Defendant Axis Surplus Insurance Co.
James, McElroy & Diehl, P.A. by Edward T. Hinson, Jr. and Jennifer
M. Houti, and and Dentons US LLP by Deborah J. Campbell, Kathryn
M. Guinn, M. Keith Moskowitz, and Samantha Wenger, for Defendants
Columbia Casualty Co., Continental Casualty Co., and Continental
Insurance Co.
Poyner Spruill, LLP by J. Nicholas Ellis, Andrew H. Erteschik, and
Colin R. McGrath, and Nicolaides Fink Thorpe Michaelides Sullivan,
LLP by Amy J. Collins Cassidy, Stephanie M. Flowers, and Monica T.
Sullivan, 	for 	Defendants 	Endurance 	American 	Insurance 	Co. 	and
Endurance American Specialty Insurance Co.
Phelps Dunbar, LLP by Thomas M. Contois, Machaella M. Reisman, and
Robert D. Whitney, and Dentons US LLP by Deborah J. Campbell,
Kathryn M. Guinn, M. Keith Moskowitz, and Samantha Wenger, for
Defendants Indian Harbor Insurance Co. and XL Insurance America,
Inc.

Cranfill Sumner LLP by Jennifer A. Welch, and Choate, Hall & Stewart,
LLP by John C. Calhoun and Robert A. Kole, for Defendants Liberty
Insurance Underwriters, Inc., Liberty Surplus Insurance Corp., and
Ohio Casualty Insurance Co.
Goldberg 	Segalla, 	LLP 	by 	David 	L. 	Brown, 	and 	Willkie 	Farr 	&
Gallagher, LLP by Joseph G. Davis, John B. Goerlich, Christopher J.
St. Jeanos, and Diana C. Vall-llobera, for Defendant National Union
Fire Insurance Co. of Pittsburg, PA.
Manning, Fulton & Skinner, P.A. by Brianne M. Glass and Michael T.
Medford, and Clausen Miller, P.C. by Amy R. Paulus, for Defendant Old
Republic Insurance Co.
Womble Bond Dickinson (US) LLP by M. Elizabeth O’Neill, and Simpson
Thacher & Bartlett, LLP by Bryce L. Friedman and Joshua C. Polster,
for Defendants St. Paul Fire and Marine Insurance Co., The Travelers
Indemnity Co., Travelers Property Casualty Co. of America, and United
States Fidelity and Guaranty Co.
Young Moore and Henderson, P.A. by Brian O. Beverly, and Ruggeri
Parks Weinberg LLP by Annette P. Rolain and James P. Ruggeri, for
Defendant Twin City Fire Insurance Co.
HWG LLP by Amy E. Richardson and Lauren E. Snyder, and Nicolaides
Fink Thorpe Michaelides Sullivan, LLP by So Young Lee, Richard H.
Nicolaides, 	Jr., 	and 	Madison 	G. 	Satterly, 	for 	Defendant 	Mitsui
Sumitomo Insurance Co. of America.
Robinson, Judge.
I. 	INTRODUCTION
4. 	This matter is primarily an insurance coverage dispute concerning whether
Defendants, insurance companies that issued insurance policies to Plaintiffs, owe
coverage obligations to Plaintiffs. Specifically, Plaintiffs seek a declaration from the
Court that Defendants have certain duties under the policies with respect to nearly
800 underlying lawsuits brought by governmental entities, third-party payors, and

individuals seeking damages related to injuries allegedly caused by Plaintiffs’
distribution and dispensing of opioid drugs.
5. 	At this stage, the Court is presented with preliminary questions. First, the
Court must determine whether it is proper to exercise personal jurisdiction over the
thirty-five foreign insurance company Defendants. 	In doing so, the Court is in the
rare position of needing to address and apply recent United States Supreme Court
precedent to the facts of this case. Next, the Court must address whether, under the
North Carolina Declaratory Judgment Act, the Court should exercise its discretion to
refuse to render a declaratory judgment as to the liabilities and obligations of
Defendants, if any. Finally, the Court will address whether it is more appropriate to
stay this action pending a final resolution of a similar, earlier-filed action initiated in
the State of Ohio that involves some, but not all, of the parties to this action.
II. 	FACTUAL AND PROCEDURAL BACKGROUND
6. 	The Court sets forth herein only those portions of the procedural history
relevant to its determination of the Motions.
7. 	“The Court does not make determinations of fact on motions to dismiss
under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure (“Rule(s)”) but only
recites those factual allegations of the Amended Complaint that are relevant and
necessary to the Court’s determination of the motions to dismiss.” 	Gateway Mgmt.
Servs. v. Carrbridge Berkshire Grp., Inc., 2018 NCBC LEXIS 45, at *9 (N.C. Super.
Ct. May 9, 2018).

8. 	However, 	on 	the 	filing 	of 	a 	motion 	to 	dismiss 	for 	lack 	of 	personal
jurisdiction, “[e]ither [side] may request that the trial court make findings regarding
personal jurisdiction, but in the absence of such request, findings are not required.”
Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615 (2000) (citations
omitted). Neither side requests the Court do so. The Court therefore declines to make
findings of fact in its later analysis of the Motion to Dismiss pursuant to Rule 12(b)(2).
A. 	The Parties
9. 	Plaintiffs The Kroger Co., Kroger Limited Partnership I, and Kroger
Limited Partnership II (together, the “Kroger Plaintiffs”) are Ohio corporations with
their corporate headquarters in Cincinnati, Ohio. (Am. Compl. ¶¶ 10–12, ECF No. 25
[“Am. Compl.”].) 	The Kroger Co. owned or operated pharmacies in North Carolina
beginning in the 1980s. (Am. Compl. ¶ 10.)
10. 	Plaintiffs Harris Teeter Supermarkets, Inc. (“HT Supermarkets”), a North
Carolina 	corporation, 	and 	Harris 	Teeter, 	LLC 	(“HT 	LLC,” 	and 	together, 	“HT
Plaintiffs,” and with the Kroger Plaintiffs, “Plaintiffs”), a North Carolina limited
liability company, each maintain their headquarters in Matthews, North Carolina.
(Am. Compl. ¶¶ 7–8.) HT LLC’s sole member is HT Supermarkets. (Aff. Taryn Mecia
¶ 14, ECF No. 180 [“Mecia Aff.”].) 	The HT Plaintiffs are wholly owned subsidiaries
of The Kroger Co., (Am. Compl. ¶ 10), and operate more than 250 stores across eight
states, including 149 stores across North Carolina, (Am. Compl. ¶ 9).
11. 	Defendants are 35 insurance companies that one or more of the Plaintiffs
purchased insurance policies from. (Am. Compl. ¶¶ 13–48.) None of the Defendants

is incorporated in North Carolina, and none maintains a principal place of business
in this State. (See Am. Compl. ¶¶ 13–48.) Plaintiffs allege that Defendants maintain
licenses to transact insurance business in North Carolina and that Defendants
“issue[d] policies in North Carolina to commercial entities residing within North
Carolina.” 	(Am. Compl. ¶¶ 13–48.) 	The Court more fully addresses herein the
respective policies Defendants issued to Plaintiffs. (See infra Part II.C.)
B. 	The Underlying Opioid Lawsuits
12. 	As of the filing of the Motions, the Kroger Plaintiffs were named as
defendants in at least 797 lawsuits involving the increased overuse and misuse of,
and overdose deaths attributed to, prescription opiates (the “Underlying Opioid
Lawsuits”). 	(See Aff. Daniel M. Sullivan ¶¶ 5–6, Ex. B at 16–98, ECF No. 142.1
[“Sullivan Aff. (Ex(s).)”]1 (providing a color-coded spreadsheet of the opioid lawsuits
naming the Kroger Plaintiffs and their affiliates as defendants as of February 2023).)
Of those 797 lawsuits, 14 were initiated in North Carolina, (Sullivan Aff. Ex. B at 56–
57), and 57 were initiated in Ohio, (Sullivan Aff. Ex. B at 58–61). 	At the Hearing,
counsel represented that the Kroger Plaintiffs have since been named in additional
lawsuits arising from similar allegations that the Kroger Plaintiffs distributed and/or
dispensed prescription opiates in a wrongful manner.
13. 	As of the filing of the Motions, the HT Plaintiffs were named as defendants
in only one of the Underlying Opioid Lawsuits, Durham County v. AmerisourceBergen
1 In this instance, Mr. Sullivan’s Affidavit and the exhibits to it may be identified by the same
ECF No. 	Rather than citing in full at each citation to a new exhibit, the Court uses the
abbreviation (“Sullivan Aff. Ex(s). [ ]–[ ] at [ ]”) for brevity. 	The exhibits to Mr. Sullivan’s
Affidavit are located at ECF Nos. 142.1–.8.

Drug Corp., et al., Case No. 1:19-op-45346-DAP (the “Durham County Bellwether”).
(See Sullivan Aff. Ex. B at 57, Ex. C.) The Durham County Bellwether was initiated
in the U.S. District Court for the Middle District of North Carolina. 	(See Aff.
Christopher J. St. Jeanos Ex. F at 1 n.3, n.6, 19, ECF No. 141.1 [“St. Jeanos Aff.
(Ex(s).)”].)2 That matter has since been transferred from North Carolina to the Multi-
District Litigation (“MDL”) before Federal District Court Judge Dan Aaron Polster in
the Northern District of Ohio, bearing the same case caption and assigned MDL
No. 2804. (St. Jeanos Aff. Ex. G.)
14. 	The Durham County Bellwether complaint alleges a claim for relief of
public nuisance against Plaintiffs. 	(St. Jeanos Aff. Ex. F at 229–37.) 	Plaintiff
Durham County alleges therein that Plaintiffs, as the natural defendants in that
action, “created and maintained a public nuisance by marketing, distributing,
dispensing, and selling opioids in ways that have subverted the public order, affected
the health of Durham County’s community, and caused an unreasonable interference
with a right common to the general public.” (St. Jeanos Aff. Ex. F at ¶ 730.)
15. 	The Kroger Plaintiffs were named in another bellwether action, which
originated in Federal Court in Ohio, Montgomery Cty. Bd. of Cty. Comm’rs v. Cardinal
Health, Inc., et al., No. 1:18-op-46326-DAP (the “Montgomery County Bellwether”).
(Sullivan Aff. Ex. MM at 1 n.3.) The Montgomery County Bellwether was transferred
from the U.S. District Court for the Southern District of Ohio to the MDL before
2 In this instance, Mr. St. Jeanos’s Affidavit and the exhibits to it are identified by the same
ECF No. To cite the exhibits to the Affidavit, the Court uses the abbreviation (“St. Jeanos
Aff. Ex(s). [ ]–[ ] at [ ]”) for brevity. The St. Jeanos Affidavit and Exhibits are located at ECF
No. 141.1.

Judge Polster. (See Sullivan Aff. Ex. MM at ¶ 32.) The plaintiffs in that action allege
that the Kroger Plaintiffs, as the natural defendants, “funneled far more opioids into
Ohio and [Montgomery] County than could have been expected to serve legitimate
medical use,” but that they “did not report a single suspicious order in the County
between 2007 and 2014.” (Sullivan Aff. Ex. MM at ¶ 456.) The complaint also alleges
that the Kroger Plaintiffs’ policies and procedures were “particularly glaring” before
2005. (Sullivan Aff. Ex. MM at ¶ 465.)
16. 	The Montgomery County Bellwether complaint asserts a claim for qualified
public nuisance, alleging that the Kroger Plaintiffs “created and maintained a public
nuisance through their ongoing conduct of marketing, distributing, dispensing, and
selling opioids . . . in a manner which caused prescriptions and sales to skyrocket in
[p]laintiff’s community.” (Sullivan Aff. Ex. MM at 241–42.)
17. 	Several other complaints from the Underlying Opioid Lawsuits were filed
in this matter for the Court’s consideration. 	(See St. Jeanos Aff. Exs. E, M–N; Aff.
Gerald P. Konkel Exs. 8–20, ECF Nos. 181, 181.2–.4 [“Konkel Aff. (Ex(s).)”] (providing
the thirteen complaints for the Underlying Opioid Lawsuits initiated in North
Carolina, excluding the Durham County Bellwether).)3 For example, the Complaint
filed in Kentucky action Paintsville Hosp. Co., LLC, et al. v. Amneal Pharm., LLC, et
al., No. 20-CI-00151 (Ky. Cir. Ct. June 8, 2020), contains seven claims for relief
against at least 62 defendants, including the Kroger Plaintiffs. (St. Jeanos. Aff. Ex. E
3 In this instance, the exhibits to Mr. Konkel’s Affidavit may be identified by the same ECF
No. 	Rather than citing in full at each citation to a new exhibit, the Court uses the
abbreviation (“Konkel Aff. Ex(s). [ ]–[ ] at [ ]”) for brevity. 	The exhibits to Mr. Konkel’s
Affidavit may be found at ECF Nos. 181.1–.5.

[“Ky. Compl.”].) 	The 380-page complaint alleges that the Kroger Plaintiffs, as a
national 	operator 	of 	over 	2,268 	pharmacies, 	“distributed 	prescription 	opioids
throughout the United States” and that the “volumes of opioids distributed to and
dispensed by [Kroger] pharmacies were disproportionate to non-controlled drugs and
other products sold by these pharmacies[.]” 	(Ky. Compl. ¶¶ 267, 269.) 	Like the
complaints 	in 	the 	Durham 	County 	and 	Montgomery 	County 	Bellwethers, 	the
Paintsville Complaint alleges a claim for nuisance. (See Ky. Compl. ¶¶ 821–35.)
18. 	Numerous additional complaints filed in the Underlying Opioid Lawsuits
allege that the Kroger Plaintiffs engaged in similar conduct and raise nuisance claims
against them. (See, e.g., St. Jeanos Aff. Ex. M (Complaint in California action Cty. of
Yuba v. AmerisourceBergen Drug Corp., et al., alleging a claim for public nuisance
against the Kroger Plaintiffs and others for their alleged unlawful distribution and
sale of prescription opioids), Ex. N (Complaint in New York action Painting Indus.
Ins. Fund v. Purdue Pharma L.P., et al., alleging a claim for public nuisance against
the Kroger Plaintiffs, among other claims, for their alleged unlawful conduct which
“severely impacted public health” such that the “public nuisance is commonly referred
to as a ‘crisis’ or an ‘epidemic’ ”).)
C. 	Insurance Policies at Issue4
19. 	Plaintiffs allege that Defendants issued insurance and fronting policies to
them, and that those policies covered “periods when the bodily injuries alleged in the
4 Numerous policies that Plaintiffs purchased from Defendants were filed by the parties in
support of and in opposition to the Motions. 	Rather than identifying each filed policy, for
brevity the Court cites to those policies which appear in the record where appropriate.

[Underlying] Opioid Lawsuits potentially and/or actually took place.” 	(Am. Compl.
¶ 51.) 	For purposes of this section only, the Court recites the allegations of the
Amended Complaint without restating that they are Plaintiffs’ allegations.
20. 	ACE American Insurance Company (“ACE American”) issued at least nine
policies to the HT Plaintiffs for the period 1 May 2014 to 1 March 2023, (Am. Compl.
¶ 57; see, e.g., Sullivan Aff. Exs. II–KK (including the policies for the period
1 March 2020 to 1 March 2023)), and twenty-three policies to the Kroger Plaintiffs
for the period 1 January 2003 to 1 March 2020, (Am. Compl. ¶ 58; Aff. Jay Chung
Exs. 5–27, ECF Nos. 183.1–.2 [“Chung Aff. Ex(s).”]).5
21. 	ACE Property and Casualty Insurance Company (“ACE P&C”) issued at
least two policies to the Kroger Plaintiffs for the period 25 January 2018 to
1 March 2020. (Am. Compl. ¶ 60; Chung Aff. Exs. 28–29.)
22. 	Federal Insurance Company (“Federal Insurance” and, together with ACE
American and ACE P&C, the “Chubb Defendants”) issued at least three policies to
the HT Plaintiffs for the period 1 May 1995 to 1 May 1998, (Am. Compl. ¶ 71), and
twenty-five policies to the Kroger Plaintiffs for the period 1 January 1994 to
25 January 2019, (Am. Compl. ¶ 72; Chung Aff. Exs. 30–53 (excluding the policy
issued for the period 1 January 1998 to 1 January 1999)).
23. 	National Union Fire Insurance Company of Pittsburgh, PA (“National
Union”) issued at least eleven policies to the Kroger Plaintiffs for the period
5 In this instance, the exhibits to Mr. Chung’s Affidavit may be identified by the same ECF
No. 	Rather than citing in full at each citation to a new exhibit, the Court uses the
abbreviation (“Chung Aff. Ex(s). [ ]–[ ] at [ ]”) for brevity. 	The exhibits to Mr. Chung’s
Affidavit may be found at ECF Nos. 183.1–.16.

1 January 2000 to 25 January 2007, and 25 January 2015 to 25 January 2018. (Am.
Compl. ¶ 59; Chung Aff. Exs. 54–63.)
24. 	Allied World National Assurance Company (“Allied World”) issued at least
one policy to the HT Plaintiffs for the period 1 May 2013 to 1 May 2014, (Am. Compl.
¶ 61; see Mecia Aff. Ex. 8, ECF No. 180.8 (providing the policy for the period
1 May 2013 to 1 May 2014)), and at least two policies to the Kroger Plaintiffs for the
period 25 January 2016 to 25 January 2018, (Am. Compl. ¶ 62; Chung Aff. Exs. 64–
65).
25. 	American 	Guarantee 	and 	Liability 	Insurance 	Company 	(“American
Guarantee”) issued at least three policies to the HT Plaintiffs for the period
1 May 2008 to 1 May 2011, (Am. Compl. ¶ 63), and at least fifteen policies to the
Kroger Plaintiffs for the period 1 January 2001 to 1 March 2020, (Am. Compl. ¶ 64;
Chung Aff. Exs. 66–80).
26. 	Aspen American Insurance Company (“Aspen American”) issued at least
three policies to the Kroger Plaintiffs for the period 25 January 2017 to 1 March 2020.
(Am. Compl. ¶ 65; Chung Aff. Exs. 81–83.)
27. 	AXIS Surplus Insurance Company (“AXIS”) issued at least one policy to the
Kroger Plaintiffs for the period 25 January 2016 to 25 January 2017. 	(Am. Compl.
¶ 66; Chung Aff. Ex. 84.)
28. 	Columbia Casualty Company (“Columbia Casualty”) issued at least one
policy to the Kroger Plaintiffs for the period 25 January 2016 to 25 January 2017.
(Am. Compl. ¶ 67; Chung Aff. Ex. 85.)

29. 	Continental Casualty Company (“Continental Casualty”) issued at least
five policies to the Kroger Plaintiffs for the period 1 January 1995 to 1 January 2000.
(Am. Compl. ¶ 68; Chung Aff. Exs. 86–89 (missing only the policy allegedly issued for
the period 1 January 1998 to 1 January 1999).)
30. 	Continental Insurance Company (“Continental Insurance”) issued at least
two policies to the Kroger Plaintiffs for the period 25 January 2018 to 1 March 2020.
(Am. Compl. ¶ 69; Chung Aff. Exs. 90–91.)
31. 	Endurance 	American 	Specialty 	Insurance 	Company 	(“Endurance
Specialty”) issued at least four policies to the Kroger Plaintiffs for the period
25 January 2016 to 1 March 2020.6 (Am. Compl. ¶ 70; Chung Aff. Exs. 92–95.)
32. 	Great American Alliance Insurance Company issued at least six policies to
the HT Plaintiffs, (Am. Compl. ¶ 73); Great American Assurance Company issued at
least three policies to the HT Plaintiffs, (Am. Compl. ¶ 74); Great American Insurance
Company issued at least five policies to the HT Plaintiffs, (Am. Compl. ¶ 75); and
Great American Insurance Company of New York (“Great American NY”) issued at
least thirteen policies to the HT Plaintiffs, (Am. Compl. ¶ 76; Mecia Aff. Ex. 6, ECF
No. 	180.6 	(including 	the 	HT 	Plaintiffs’ 	policy 	for 	the 	period 	1 	May 	2013 	to
1 May 2014)), and eight to the Kroger Plaintiffs, (Am. Compl. ¶ 77; Chung Aff.
Exs. 96–103).
6 One of the policies that Plaintiffs allege was issued by Endurance Specialty appears to have
been 	issued 	by 	Endurance 	American 	Insurance 	Company 	for 	25 	January 	2019 	to
1 March 2020, bearing policy number ELD30000047103. (Chung Aff. Ex. 95.)

33. 	Great American Spirit Insurance Company (“Great American Spirit”)
issued at least five policies to the Kroger Plaintiffs for the period 25 January 2015 to
1 March 2020. (Am. Compl. ¶ 78; Chung Aff. Exs. 104–08.)
34. 	Travelers Indemnity Company (“Travelers Indemnity”) issued at least four
policies to the HT Plaintiffs for the period 1 June 2000 to 1 May 2004, (Am. Compl.
¶ 79), and Travelers Property Casualty Company of America (“Travelers Property”)
issued at least fifteen policies to the HT Plaintiffs for the period 1 May 1995 to
1 June 2000, and 1 May 2003 to 1 May 2013, (Am. Compl. ¶ 91; Mecia Aff. Ex. 5, ECF
No. 180.5 (including the policy for the period 1 May 2012 to 1 May 2013)).
35. 	Indian Harbor Insurance Company (“Indian Harbor”) issued at least two
policies to the Kroger Plaintiffs for the period 25 January 2016 to 25 January 2018.
(Am. Compl. ¶ 80; Chung Aff. Exs. 109–10.)
36. 	Liberty Insurance Underwriters, Inc. (“Liberty Underwriters”) issued at
least nine policies to the HT Plaintiffs for the period 1 May 2004 to 1 May 2014. (Am.
Compl. ¶ 81; Mecia Aff. Ex. 7, ECF No. 180.7 (including the policy for the period
1 May 2013 to 1 May 2014).) Liberty Underwriters also issued at least eight policies
to the Kroger Plaintiffs for the period 25 January 2009 to 25 January 2017. 	(Am.
Compl. ¶ 82; Chung Aff. Exs. 111–17 (missing only the policy allegedly issued for the
period 25 January 2016 to 25 January 2017).)
37. 	Liberty Surplus Insurance Corporation (“Liberty Surplus”) issued at least
three 	policies 	to 	the 	Kroger 	Plaintiffs 	for 	the 	period 	25 	January 	2017 	to
25 January 2019. (Am. Compl. ¶ 83; Chung Aff. Exs. 119–21.)

38. 	Ohio Casualty Insurance Company (“Ohio Casualty”) issued at least one
policy to the HT Plaintiffs for the period 1 May 2007 to 1 May 2008. 	(Am. Compl.
¶ 84.)
39. 	Old Republic Insurance Company (“Old Republic”) issued at least three
policies to the Kroger Plaintiffs for the period 1 January 2003 to 25 January 2006.
(Am. Compl. ¶ 85; Chung Aff. Exs. 122–23 (missing only the policy allegedly issued
for the period 1 January 2003 to 3 February 2004).)
40. 	St. Paul Fire and Marine Insurance Company (“St. Paul Fire”) issued at
least four policies to the HT Plaintiffs for the period 1 May 2003 to 1 May 2007, (Am.
Compl. ¶ 86), and at least four policies to the Kroger Plaintiffs for the period
1 January 2002 to 25 January 2006, (Am. Compl. ¶ 87; Chung Aff. Exs. 124–27).
41. 	Starr Surplus Lines Insurance Company (“Starr”) issued at least three
policies to the Kroger Plaintiffs for the period 25 January 2012 to 25 January 2015.
(Am. Compl. ¶ 88; Chung Aff. Exs. 128–30.)
42. 	Steadfast Insurance Company (“Steadfast”) issued at least three policies to
the Kroger Plaintiffs for the period 25 January 2016 to 25 January 2019. (Am. Compl.
¶ 89; Chung Aff. Exs. 131–33.)
43. 	Mitsui Sumitomo Insurance Company of America (“Mitsui Sumitomo”)
issued at least two policies to the HT Plaintiffs for the period 1 May 1994 to
1 May 1996. (Am. Compl. ¶ 90.)
44. 	Twin City Fire Insurance Company (“Twin City”) issued at least four
policies to the HT Plaintiffs for the period 1 May 1997 to 1 June 2000, and 1 May 2013

to 1 May 2014. 	(Am. Compl. ¶ 92; Mecia Aff. Ex. 9, ECF No. 180.9 (including the
policy for the period 1 May 2013 to 1 May 2014).)
45. 	United States Fidelity and Guaranty Company (“U.S. Fidelity”) issued at
least three policies to the HT Plaintiffs for the period 1 June 2000 to 1 May 2003,
(Am. Compl. ¶ 93), and at least one policy to the Kroger Plaintiffs for the period
1 January 2000 to 1 January 2003, (Am. Compl. ¶ 94; Chung Aff. Ex. 134).
46. 	United States Fire Insurance Company (“U.S. Fire”) issued at least one
policy to the HT Plaintiffs for the period 1 May 1995 to 1 May 1996. 	(Am. Compl.
¶ 95.)
47. 	Westport Insurance Corporation (“Westport”) issued at least six policies to
the HT Plaintiffs for the period 1 May 1996 to 1 May 2002. (Am. Compl. ¶ 96.)
48. 	XL Insurance America, Inc. (“XL America”) issued at least twelve policies
to the HT Plaintiffs for the period 1 May 2002 to 1 May 2014, (Am. Compl. ¶ 97; Mecia
Aff. Ex. 10, ECF No. 180.10 (providing the policy for the period 1 May 2013 to
1 May 2014)), and at least nine policies to the Kroger Plaintiffs for the period
25 January 2006 to 25 January 2016, (Am. Compl. ¶ 98; Chung Aff. Exs. 135–43).
49. 	Zurich American Insurance Company (“Zurich”) issued at least one policy
to the HT Plaintiffs for the period 1 May 2004 to 1 May 2005. (Am. Compl. ¶ 99.)
D. 	The Acuity Decision and the Ohio Insurance Action
50. 	On 7 September 2022, the Supreme Court of Ohio filed its opinion in Acuity
v. Masters Pharm., Inc., 205 N.E.3d 460 (Ohio 2022). 	There, the Supreme Court of
Ohio considered whether an insurer owed a duty to defend its insured in lawsuits

brought by city and county governments for losses allegedly caused by the opioid
epidemic. Acuity, 205 N.E.3d at 462. The trial court held, in part, that the complaints
in the underlying opioid lawsuits did not seek damages because of bodily injury as
the governmental entities sought damages for economic loss. Id. at 463.
51. 	The Supreme Court of Ohio held that governmental entities suing for
alleged economic losses sustained by their citizens caused by the opioid epidemic were
not seeking “damages because of bodily injury.”7 Id. at 473 (“[T]he governments here
do not seek damages because of any particular opioid-related injury sustained by a
citizen.”). 	The majority wrote that, “[t]o hold otherwise would be to conclude that a
duty to defend exists simply because a consequence of the alleged public-health crisis
is bodily injury, regardless of the fact that the underlying parties do not seek damages
because of any particular bodily injury sustained by a person.” Id. at 474.
52. 	Roughly a month later, on 12 October 2022, the Chubb Defendants initiated
an action in Hamilton County, Ohio seeking declarations that they are not required
to provide coverage to the Kroger Plaintiffs, as the natural defendants, for underlying
7 The Court’s analysis in Acuity draws attention to the “growing and diverging body of case
law” on this issue. Acuity, 205 N.E.3d at 465. Importantly, the Court highlights the varying
interpretations of the meaning of “damages because of bodily injury.” On one side there are
courts which have interpreted it to invoke the insurer’s duty to defend because the
governmental entities sought damages for bodily injuries to their citizens, and thus
necessarily also sought to recover costs related to emergency medical treatment and
additional services. Id. at 465–66 (citing Cincinnati Ins. Co. v. H.D. Smith, L.L.C., 829 F.3d
771, 775 (7th Cir. 2016); Giant Eagle, Inc. v. Am. Guar. & Liab. Ins. Co., 499 F. Supp. 3d 147
(W.D. Pa. 2020)). 	The Court contrasts that interpretation with the one it chooses, noting
where other courts have concluded that no duty to defend existed because the governmental
entities “sought to recover their own increased economic costs resulting from a public-health
crisis” without tying their claims to “an individual opioid-related injury[.]” Id. at 466 (citing
ACE Am. Ins. Co. v. Rite Aid Corp., 270 A.3d 239, 253–54 (Del. 2022); Westfield Natl. Ins. Co.
v. Quest Pharms., Inc., 2021 U.S. Dist. LEXIS 86931, at *18 (W.D. Ky. May 6, 2021)).

opioid litigation.8 (St. Jeanos Aff. ¶ 16, Ex. J.) The Complaint in that action contains
three claims for declaratory judgment, seeking a declaration that: (1) the Chubb
Defendants have “no duty to defend or pay for Kroger’s defense of the Opioid
Lawsuits”; (2) “under the terms, conditions, and exclusions of the Policies, Chubb has
no duty to indemnify Kroger for the Opioid Lawsuits”; and (3) if the Chubb
Defendants are found liable under the policies issued to The Kroger Co., they are
entitled “to the proper share of equitable contribution from the [o]ther [i]nsurers,
including but not limited to a declaration that Chubb is not responsible for any share
of Kroger’s defense or indemnity costs attributable to periods outside the effective
dates of the Chubb Policies.” 	(St. Jeanos Aff. Ex. J at ¶¶ 45, 48, 50.) 	The Chubb
Defendants also named many of the Kroger Plaintiffs’ other insurers as defendants.9
(St. Jeanos Aff. Ex. J at 1–4.)
53. 	On 13 October 2022, National Union did the same.10 (St. Jeanos Aff. ¶ 17,
Ex. K.) 	National Union’s Complaint contains two claims for declaratory judgment,
seeking a decree that (1) the policies issued by it to The Kroger Co. do not create a
duty to defend with regard to the Underlying Opioid Lawsuits; and (2) under the
8 That action is captioned Ace Am. Ins. Co. et al. v. The Kroger Co., et al., A 2203712 (Hamilton
Cty. Ct. C.P.). (See Sullivan Aff. ¶ 23.)
9 The Chubb Defendants named four defendants which are not parties in this action: AIU
Insurance Company; Lumbermens Mutual Casualty Company; XL Europe Limited; and XL
Insurance Company of New York. 	(See St. Jeanos Aff. Ex. J.) 	At the Hearing, Plaintiffs’
counsel represented to the Court that: AIU Insurance Company and XL Insurance Company
of New York did not issue any policies to the Kroger Plaintiffs; Lumbermens Mutual Casualty
Company was in liquidation, so Plaintiffs did not add it to this action; and XL Europe Limited
did not issue any general liability policies to the Kroger Plaintiffs.
10 That action is captioned Nat’l Union Fire Ins. Co. of Pittsburgh, Pa v. The Kroger Co.,
A 2203724, (Hamilton Cty. Ct. C.P.). (See Sullivan Aff. ¶¶ 24–25.)

terms of the policies it issued to The Kroger Co., National Union has no duty to
indemnify. (St. Jeanos Aff. Ex. K at ¶¶ 33–34, 37–38.)
54. 	On 9 February 2023, the Ohio Court consolidated the two pending actions
initiated by the Chubb Defendants and National Union (the “Ohio Insurance Action”).
(Sullivan Aff. ¶ 25, Ex. J.)
55. 	This 	action 	was 	initiated 	by 	Plaintiffs 	shortly 	thereafter 	on
8 November 2022. 	(See Compl., ECF No. 28.) 	Several Defendants thereafter filed
crossclaims in the Ohio Insurance Action.
56. 	On 29 November 2022, American Guarantee and Steadfast jointly filed
their answer to the Chubb Defendants’ Complaint, and a crossclaim for declaratory
judgment. (See Sullivan Aff. ¶ 40, Ex. Y.)
57. 	On 5 December 2022, the Kroger Plaintiffs filed their Motion to Dismiss or
Stay in the Ohio Insurance Action. (St. Jeanos Aff. Ex. L.) That matter came on for
hearing on 4 April 2023 before Hon. Lisa Allen in the Court of Common Pleas of
Hamilton County, Ohio. (See St. Jeanos Aff. ¶ 18; Sullivan Aff. Ex. J.) As far as the
Court is aware, no order has been entered.
58. 	From 12 December to 15 December 2022, Allied World, Aspen American,
Endurance 	American, 	Endurance 	Specialty, 	Great 	American 	Insurance, 	Great
American NY, Great American Spirit, Old Republic, Starr, St. Paul Fire, and U.S.
Fidelity filed answers and crossclaims to the Chubb Defendants’ Complaint in the
Ohio Insurance Action. (Sullivan Aff. ¶¶ 33–39, Exs. R–X.) In January 2023, AXIS,
Columbia Casualty, Continental Insurance, Indian Harbor, Liberty Underwriters,

National Union, and XL Insurance also filed answers and crossclaims to the Chubb
Defendants’ complaint. (Sullivan Aff. ¶¶ 26–32, Exs. K–Q.)
59. 	The Motions in this action were thereafter filed on 27 March 2023. 	(Mot.
Dismiss; Mot. Stay.)
E. 	The Parties’ North Carolina Contacts
1. 	Plaintiffs’ Business in North Carolina
60. 	As discussed above, the HT Plaintiffs are North Carolina corporations. On
28 	January 	2014, 	HT 	Supermarkets 	merged 	with 	Hornet 	Acquisition, 	Inc., 	a
corporate holding company organized under the laws of North Carolina with its
mailing address in Cincinnati, Ohio. 	(St. Jeanos Aff. Ex. B.) 	It is undisputed that
the HT Plaintiffs became wholly owned subsidiaries of the Kroger Plaintiffs on this
date. 	(See Defs.’ Br. Supp. Mot. Dismiss 5, ECF No. 136 [“Br. Supp. Mot. Dismiss”]
(citing St. Jeanos Aff. Ex. B); Mecia Aff. ¶ 11.) The Kroger Co. has roughly 200 wholly
owned subsidiaries, at least twelve of which are incorporated in North Carolina. (See
St. Jeanos Aff. Ex. A at 103–09 (providing the subsidiaries of The Kroger Co. in its
Annual Report for the 2021 fiscal year).)
61. 	According to the HT Supermarkets 2021 Annual Report, its registered
agent is in Raleigh, North Carolina, and its principal office is in Matthews, North
Carolina. (Sullivan Aff. Ex. NN.) Four of the corporation’s ten officers reside in North
Carolina, with the remaining six residing in Ohio. (Sullivan Aff. Ex. NN.)
62. 	The HT Plaintiffs and their predecessor entities have operated grocery
stores in North Carolina since the 1960s and pharmacies since 1993. 	(Mecia Aff.

¶¶ 16–17.) The HT Plaintiffs have 149 of their 257 total grocery stores in this State,
with food distribution centers in Greensboro and Indian Trail, North Carolina.
(Mecia Aff. ¶ 18.)
63. 	The HT Plaintiffs have “not maintained independent business activities in
Ohio and ha[ve] never been registered to do business in Ohio.” 	(Mecia Aff. ¶ 22.)
Furthermore, HT Supermarkets maintained “its own general liability insurance
program and was issued policies providing annual primary and excess insurance”
prior to its acquisition by The Kroger Co. in 2014. (Mecia Aff. ¶ 25; Mecia Aff. Exs. 5–
10, 	ECF 	Nos. 	180.5–.10 	(providing 	insurance 	policies 	that 	HT 	Supermarkets
purchased from various Defendants).)
64. 	The Kroger Plaintiffs are Ohio corporations doing business in North
Carolina. (Am. Compl. ¶¶ 10–12.) Plaintiffs allege that The Kroger Co. has “owned
and operated pharmacies in North Carolina since the 1980s, employing and serving
thousands of North Carolinians.” (Am. Compl. ¶ 10.)
65. 	The Kroger Plaintiffs are registered to do business in North Carolina and
The Kroger Co. filed its most recent annual report here on 24 April 2023. 	(Aff. Jay
Chung ¶ 8, ECF No. 183 [“Chung Aff.”].) 	The Kroger Plaintiffs operated grocery
stores in North Carolina from 1989 to 2018, but they closed the remaining fourteen
North Carolina stores in 2018, selling eight to the HT Plaintiffs. (Chung Aff. ¶¶ 10–
11.)

66. 	Presently, the Kroger Plaintiffs are “in the process of opening a customer
fulfillment center in North Carolina, the purpose of which is to enable Kroger to
deliver groceries to e-commerce customers” in this State. (Chung Aff. ¶ 13.)
2. 	Defendants’ North Carolina Insurance Business
67. 	As noted previously, none of the Defendants is incorporated in North
Carolina, and none maintains its principal place of business or registered agent in
this State. (See Am. Compl. ¶¶ 13–47; ECF Nos. 141.3–.21 (providing the affidavits
of counsel for various Defendants, which affirm that those Defendants are not
incorporated in this State, and providing the states in which they are incorporated
and/or the cities where they maintain a principal place of business).)
68. 	It appears that Great American Spirit maintained a North Carolina
Professional Risk Office at 11325 N. Community House Rd. Suite 200 in Charlotte
from at least 25 January 2015 to 25 January 2020. 	(See Chung Aff. Exs. 104–08
(providing at Item 6 that “All other Notices . . . [t]o the Company” should be sent to
that office in Charlotte).) 	Based on the record before the Court, Great American
Spirit is the only Defendant which maintained an office in this State.
69. 	Plaintiffs allege that Defendants are licensed insurers in the State of North
Carolina, and that they issued policies in North Carolina to commercial entities
residing in this State. 	(Am. Compl. ¶¶ 13–47.) 	Furthermore, it appears that
Defendants 	each 	appointed 	the 	North 	Carolina 	Commissioner 	of 	Insurance
(“Commissioner”) to be their agent for purposes of service of process pursuant to
N.C.G.S. §§ 58-16-30 or 58-21-100. (Konkel Aff. Ex. 21.) Doing so was a requirement

for licensure pursuant to Chapter 58, Articles 16 and 21 of the North Carolina
General Statutes.
70. 	As discussed in detail herein, Defendants issued insurance policies to The
Kroger Co. and HT Supermarkets beginning as early as 1994. (See Chung Aff. Ex. 30
(providing a policy The Kroger Co. purchased from Federal Insurance for the period
1 January 1994 to 1 January 1995, which referenced associated policies with
Continental Casualty).)
71. 	A vast majority of the policies in the record were issued when Plaintiffs
were engaged in selling pharmaceuticals from their grocery store pharmacies in
North Carolina. 	In fact, of the roughly 140 policies the Kroger Plaintiffs purchased
from Defendants, only sixteen provided coverage for 2018 or the years after. 	(See
generally Chung Aff. Exs. 5–143 (providing the insurance policies of record that the
Kroger Co. purchased from Defendants).)
72. 	Based on the information of record, it appears that from 2013 to 2021,
Defendants generated $10,464,066,455.00 in total direct premiums written in North
Carolina and $10,238,904,079.00 in total direct premiums earned in North Carolina.
(Konkel Aff. Ex. 22 (providing annual dollar amount totals of each Defendant’s
property and casualty insurance business in this State); Chirozzi Aff. Exs. 1, 3, 5, 7,
9, 11, 13, 32–33, ECF Nos. 184, 184.1–.5 (providing the data that was ultimately
combined and summarized to get the total numbers stated in this paragraph).)
Further, Defendants paid a combined $5,166,729,074.00 in total direct losses in North

Carolina and incurred a combined $5,567,378,332.00 in direct losses incurred in
North Carolina. (Konkel Aff. Ex. 22.)
73. 	Following full briefing on the Motions, the Court held the Hearing on
19 July 2023, at which all parties were present and represented through counsel.
(See ECF No. 206.) The Motions are ripe for resolution.
III. 	LEGAL STANDARD
A. 	Motion to Dismiss Pursuant to Rule 12(b)(2)
74. 	When a defendant moves to dismiss a complaint under Rule 12(b)(2) for
lack of personal jurisdiction, the plaintiff carries the burden of establishing that the
trial court possesses personal jurisdiction over the defendant. See Bauer v. Douglas
Aquatics, Inc., 207 N.C. App. 65, 68 (2010). 	“When the parties have submitted
affidavits and other documentary evidence, a trial court reviewing a motion to
dismiss for lack of personal jurisdiction under Rule 12(b)(2) must determine whether
the plaintiff has established that jurisdiction exists by a preponderance of the
evidence.” 	State ex rel. Stein v. E. I. du Pont de Nemours & Co., 382 N.C. 549, 555
(2022). Once affidavits and evidence challenging personal jurisdiction are submitted,
“unverified allegations in a complaint conflicting with that evidence may no longer
be taken as true[,]” though “allegations in [the] complaint uncontroverted by [the
evidence] are still taken as true.” Weisman v. Blue Mt. Organics Distrib., LLC, 2014
NCBC LEXIS 41, at **2 (N.C. Super. Ct. Sept. 5, 2014) (citing Banc of Am. Sec., LLC
v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693–94 (2005)).

B. 	Motion to Dismiss Pursuant to Rule 12(b)(6)
75. 	In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court
reviews the allegations in the Amended Complaint in the light most favorable to
Plaintiffs. See Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5 (2017). The
Court’s inquiry is “whether, as a matter of law, the allegations of the complaint . . .
are sufficient to state a claim upon which relief may be granted under some legal
theory[.]” 	Harris v. NCNB Nat’l Bank, 85 N.C. App. 669, 670 (1987) (citation
omitted). 	The Court accepts all well-pleaded factual allegations in the relevant
pleading as true. 	See Krawiec v. Manly, 370 N.C. 602, 606 (2018). 	The Court is
therefore not required “to accept as true allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.” Good Hope Hosp., Inc.
v. N.C. Dep’t of Health & Human Servs., 174 N.C. App. 266, 274 (2005) (cleaned up).
76. 	Furthermore, the Court “can reject allegations that are contradicted by the
documents attached, specifically referred to, or incorporated by reference in the
complaint.” 	Moch v. A.M. Pappas & Assocs., LLC, 251 N.C. App. 198, 206 (2016)
(citation omitted). The Court may consider these attached or incorporated documents
without converting the Rule 12(b)(6) motion into a motion for summary judgment.
Id. (citation omitted). Moreover, the Court “may properly consider documents which
are the subject of a plaintiff’s complaint and to which the complaint specifically refers
even though they are presented by the defendant.” 	Oberlin Capital, L.P. v. Slavin,
147 N.C. App. 52, 60 (2001) (citation omitted).

77. 	Our Supreme Court has noted that “[i]t is well-established that dismissal
pursuant to Rule 12(b)(6) is proper when ‘(1) the complaint on its face reveals that no
law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of
facts sufficient to make a good claim; or (3) the complaint discloses some fact that
necessarily defeats the plaintiff’s claim.’ ” 	Corwin v. British Am. Tobacco PLC,
371 N.C. 605, 615 (2018) (quoting Wood v. Guilford Cty., 355 N.C. 161, 166 (2002)).
This standard of review for Rule 12(b)(6) is the standard our Supreme Court “uses
routinely . . . in assessing the sufficiency of complaints in the context of complex
commercial litigation.” Id. at 615 n.7 (citations omitted).
IV. 	ANALYSIS
78. 	The Court addresses the Motions in turn, beginning with the Motion to
Dismiss. 	The Court first considers whether it is proper to exercise personal
jurisdiction over certain Defendants, and then turns to whether the Court should
exercise its discretion to refuse to render a declaratory judgment as to the liabilities
and obligations, if any, of Defendants. The Court concludes its analysis of the Motions
by addressing the Motion to Stay.
A. 	Motion to Dismiss Pursuant to Rule 12(b)(2)
79. 	Allied World, American Guarantee, Aspen American, AXIS, the Chubb
Defendants, 	Columbia 	Casualty, 	Continental 	Casualty, 	Continental 	Insurance,
Endurance American, Endurance Specialty, Great American Spirit, Indian Harbor,
Liberty Underwriters, Liberty Surplus, National Union, Old Republic, St. Paul Fire,
Starr, 	Steadfast, 	U.S. 	Fidelity, 	and 	XL 	Insurance 	(together, 	the 	“PJ 	Moving

Defendants”) 	request 	dismissal 	pursuant 	to 	Rule 12(b)(2) 	for 	lack 	of 	personal
jurisdiction.11 (Mot. Dismiss 2 n.2.)
80. 	Plaintiffs allege that the Court has personal jurisdiction over Defendants
“pursuant to applicable North Carolina law” because:
(i) the Defendant Insurers have engaged in substantial business activity
within North Carolina including but not limited to being authorized to
sell or write insurance in North Carolina, (ii) the Harris Teeter Plaintiffs
were and are residents of and the Kroger Plaintiffs had and have
substantial operations alleged to be at issue in underlying Opioid
Lawsuits in North Carolina when the events out of which the claims in
this action arose took place, (iii) the Policies at issue are contracts of
insurance 	on 	property, 	lives, 	or 	interests 	in 	this 	State, 	(iv) 	the
performance of the Insurers’ duties under the Policies at issue are
required to be undertaken in North Carolina, and/or (v) injurious
consequences 	of 	Defendant 	Insurers’ 	denial 	of 	their 	contractual
obligations to provide coverage have been or will be sustained in North
Carolina.
(Am. Compl. ¶ 49.)
81. 	Following the filing of the Motions, and the completion of briefing, Plaintiffs
filed 	their 	Suggestion 	of 	Subsequently 	Decided 	Authority 	Under 	BCR 7.9
(“Suggestion of Subsequent Authority”). 	(ECF No. 228 [“BCR 7.9 Filing”].) 	In the
Suggestion of Subsequent Authority, Plaintiffs cite to the United States Supreme
Court’s recent decision, Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028
(2023), arguing that “consistent with due process, a state may require a foreign
11 Great American Alliance Insurance Company, Great American Assurance Company, Great
American Insurance Company, Great American NY, Ohio Casualty, Mitsui Sumitomo,
Travelers Indemnity, Travelers Property Casualty, Twin City Fire, U.S Fire, Westport
Insurance Corporation, and Zurich American Insurance Company do not challenge personal
jurisdiction. (See Mot. Dismiss 1–2 n.2; Def. Twin City Joinder Mot. Dismiss, ECF No. 139
(Twin City Fire joining in the Motion to Dismiss only pursuant to Rule 12(b)(6)); ECF No. 140
(Mitsui Sumitomo joining in the Motion to Dismiss only pursuant to Rule 12(b)(6)).)

corporation to consent to personal jurisdiction before registering to do business within
a state.” (BCR 7.9 Filing.) Plaintiffs contend that the Mallory decision supports the
Court’s exercise of personal jurisdiction over PJ Moving Defendants because the PJ
Moving Defendants each registered to do insurance business in North Carolina. (See
BCR 7.9 Filing (citing N.C.G.S. §§ 1-75.4(1)(d), 58-16-5, 58-16-30).)
82. 	Determining whether a non-resident defendant is subject to personal
jurisdiction 	in this State’s 	courts 	involves 	a 	two-step analysis. 	“First, North
Carolina’s long-arm statute, N.C.G.S. § 1-75.4, must authorize a court to exercise
jurisdiction.” 	Shaeffer v. SingleCare Holdings, LLC, 384 N.C. 102, 106 (2023)
(citation omitted). 	Second, the Fourteenth Amendment’s Due Process Clause must
permit the Court to exercise jurisdiction over a defendant. Id. (citation omitted). “In
practice, the analysis often collapses into one inquiry because the North Carolina
Supreme Court has broadly construed the long-arm statute ‘to make available to the
North Carolina courts the full jurisdictional powers permissible under federal due
process.’ ” State ex rel. Stein v. Bowen, 2022 NCBC LEXIS 127, at **10 (N.C. Super.
Ct. Oct. 27, 2022) (citing Beem USA LLLP v. Grax Consulting, LLC, 373 N.C. 297,
302 (2020)).
83. 	Due process requires a defendant to have “certain minimum contacts with
[the forum state] such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” 	Int’l Shoe Co. v. Wash., 326 U.S. 310,
316 (1945) (cleaned up). 	“Minimum contacts are established through ‘some act by
which the defendant purposefully avails itself of the privilege of conducting activities

within the forum State, thus invoking the benefits and protections of its laws.’ ”
Shaeffer, 384 N.C. at 107 (quoting Beem USA, 373 N.C. at 303). Plaintiffs have the
burden of proving that PJ Moving Defendants “deliberately reached out beyond
[their] home—by, for example, exploiting a market in the forum State or entering a
contractual relationship centered there.” Mucha v. Wagner, 378 N.C. 167, 171 (2021)
(cleaned up).
84. 	“Minimum contacts may give rise to one of two forms of jurisdiction: general
or specific jurisdiction.” Schaeffer, 384 N.C. at 107 (citation omitted). “A court may
assert general jurisdiction over foreign (sister-state or foreign-country) corporations
to hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (quoting
Int’l Shoe, 326 U.S. at 317). 	“When a defendant’s conduct in a state is not so
extensive, [specific] jurisdiction may . . . be proper if ‘the litigation results from the
alleged injuries that arise out of or relate to the defendant’s activities.’ ” 	Shaeffer,
384 N.C. at 107 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).
1. 	Long Arm Statute
85. 	North Carolina’s long-arm statute, N.C.G.S. § 1-75.4, provides that the
Court may exercise personal jurisdiction over a party that is “engaged in substantial
activity within this State, whether such activity is wholly interstate, intrastate, or
otherwise.” N.C.G.S. § 1-75.4(1)d. Our Supreme Court has interpreted this provision
as permitting “North Carolina courts [to exercise] the full jurisdictional powers

permissible under federal due process.” 	Dillon v. Numismatic Funding Corp., 291
N.C. 674, 676 (1977); see also Schaeffer, 384 N.C. at 106. 	Thus, the Court may
exercise jurisdiction over PJ Moving Defendants to the extent permitted by federal
due process.
86. 	PJ Moving Defendants contend that, under N.C.G.S. § 1-75.4(1)d, whether
personal jurisdiction is appropriate depends on whether the alleged harm at issue
arises out of the PJ Moving Defendants’ contacts with North Carolina. 	(Br. Supp.
Mot. Dismiss 19.) The Court agrees, and therefore, must proceed to the Due Process
analysis.
2. 	Due Process Analysis
a. 	Recent Supreme Court Precedent
87. 	PJ 	Moving 	Defendants 	contend 	that 	general 	personal 	jurisdiction 	is
“unavailable.” 	(Br. Supp. Mot. Dismiss 15.) 	However, given recent United States
Supreme Court precedent raised by Plaintiffs in the Suggestion of Subsequent
Authority, and Plaintiffs’ citation to N.C.G.S. § 58-16-30 in their response brief, (see
Pls.’ Br. Opp. Mot. Dismiss 8, 16, ECF No. 186 [“Br. Opp. Mot. Dismiss”]), the Court
disagrees.
88. 	In Mallory, Defendant Norfolk Southern Railway (“Norfolk Southern”)
challenged the Pennsylvania courts’ exercise of personal jurisdiction over it, arguing
that doing so would offend Due Process. 	143 S. Ct. at 2033. 	Norfolk Southern was
incorporated in Virginia and maintained its headquarters there. 	Id. 	However, the
company was registered to do business in Pennsylvania, which required “out-of-state

companies that register to do business in the Commonwealth to agree to appear in
its courts on ‘any cause of action’ against them.” 	Id. (citing 42 Pa. Cons. Stat.
§ 5301(a)(2)(i), (b) (2019)). 	Plaintiff, Mr. Mallory, argued that Norfolk Southern
consented to be sued in Pennsylvania and could not contest personal jurisdiction. Id.
The United States Supreme Court, reversing the Pennsylvania Supreme Court, sided
with Mr. Mallory and addressed whether the Due Process Clause prohibits states
“from requiring an out-of-state corporation to consent to personal jurisdiction to do
business there.” Id.
89. 	In analyzing this issue, the Supreme Court relied largely on its analysis in
Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issues Mining & Milling Co., 243
U.S. 	93 	(1917). 	In that 	case, 	Pennsylvania Fire 	was an 	insurance 	company
incorporated under the laws of Pennsylvania being sued in Missouri, and it argued
that, under the Due Process Clause, it could not be sued in Missouri because it had
no connection with the state. Pennsylvania Fire, 243 U.S. at 94–95; Mallory, 143 S.
Ct. at 2036. Missouri, at least at that time, required out-of-state insurance companies
to file “with the Superintendent of the Insurance Department a power of attorney
consenting that service of process upon the superintendent should be deemed
personal 	service 	upon 	the 	company 	so 	long 	as 	it 	should 	have 	any 	liabilities
outstanding in the State.” 	Pennsylvania Fire, 243 U.S. at 94. 	There, the Supreme
Court ultimately held that “there was ‘no doubt’ Pennsylvania Fire could be sued in
Missouri by an out-of-state plaintiff on an out-of-state contract because it had agreed

to accept service of process in Missouri on any suit as a condition of doing business
there.” Mallory, 143 S. Ct. at 2036 (quoting Pennsylvania Fire, 243 U.S. at 95).
90. 	The Mallory Court found that Pennsylvania Fire was still controlling,12
concluding that the Pennsylvania law at issue which required an out-of-state
corporation to register with the Department of State operated just like the Missouri
law at issue in Pennsylvania Fire—both permitted state courts to “exercise general
personal jurisdiction” over a registered foreign corporation, just as they could over
domestic corporations, because the foreign corporation completed the mandatory
statutory registration procedures. 	Mallory, 143 S. Ct. at 2037. 	Therefore, the
Supreme Court rejected Norfolk Southern’s argument that it could not be subject to
general personal jurisdiction in Pennsylvania because it already submitted to suit
there. Id. at 2043 (“[O]ur personal jurisdiction cases have never found a Due Process
Clause problem sounding in federalism when an out-of-state defendant submits to
suit in the forum State. After all, personal jurisdiction is a personal defense that may
be waived or forfeited.”).
12 Perhaps most notably, the Supreme Court expressly declined to overturn Pennsylvania
Fire, holding that the precedent fits squarely within the personal jurisdiction analysis
understood since International Shoe. Mallory, 143 S. Ct. at 2039 (citing Int’l Shoe, 326 U.S.
310). The Mallory Court explained:
Pennsylvania Fire held that an out-of-state corporation that has consented to
in-state suits in order to do business in the forum is susceptible to suit there.
International Shoe held that an out-of-state corporation that has not consented
to in-state suits may also be susceptible to claims in the forum State based on
“the quality and nature of [its] activity” in the forum.
Mallory, 143 S. Ct. at 2039 (emphasis added) (quoting Int’l Shoe, 326 U.S. at 319).

b. 	North Carolina’s Insurance Statutes
91. 	North Carolina has a statutory scheme similar to the Missouri law at issue
in Pennsylvania Fire. The laws of this State provide:
[N.C.G.S. § 58-3-5:] Except as provided in [N.C.]G.S. [§ ]58‑3‑6,[13] it is
unlawful for any company to make any contract of insurance upon or
concerning any property or interest or lives in this State, or with any
resident thereof, or for any person as an insurance producer to make,
negotiate, solicit, or in any manner aid in the transaction of such
insurance, unless and except as authorized under the provisions of
Articles 1 through 64 of this Chapter.
[N.C.G.S. § 58-16-5:] A foreign or alien insurance company may be
licensed to do business when it: . . . (10) Files with the Commissioner [of
Insurance] 	an 	instrument 	appointing 	the 	Commissioner 	as 	the
company’s agent on whom any legal process under [N.C.]G.S. [§ ]58-16-
30 may be served. 	This appointment is irrevocable as long as any
liability of the company remains outstanding in this State. 	A copy of
this instrument, certified by the Commissioner, is sufficient evidence of
this appointment; and service upon the Commissioner is sufficient
service upon the company.
[N.C.G.S. § 58-16-30:] As an alternative to service of legal process under
. . . Rule 4, the service of such process upon any insurance company or
any foreign or alien entity licensed or admitted and authorized to do
business in this State under the provisions of this Chapter may be made
by . . . delivering and leaving a copy of the process in the office of the
Commissioner with a deputy or any other person duly appointed by the
Commissioner for that purpose; or acceptance of service of the process
may be made by the Commissioner or a duly appointed deputy or person.
N.C.G.S. §§ 58-3-5, 58-16-5(10), 58-16-30.
92. 	Importantly, 	N.C.G.S. 	§ 58-16-5 	sets 	forth 	requirements 	for 	foreign
insurance companies to be admitted and authorized to do business in North Carolina.
See Crain & Denbo, Inc. v. Harris & Harris Constr. Co., 250 N.C. 106, 109 (1959)
13 North Carolina General Statutes § 58‑3‑6 concerns charitable organizations, as defined
more thoroughly by the Internal Revenue Code §§ 501(c)(3), 170(c), and charitable gift
annuities. This section is inapplicable to the facts of this case and PJ Moving Defendants.

(describing the statute, as it was formerly codified at § 58-150, as prescribing “the
conditions for a foreign insurance company to be admitted and authorized to do
business 	in 	North 	Carolina”). 	Thus, 	filing 	an 	instrument 	appointing 	the
Commissioner of Insurance as agent for purposes of service 	of process under
subsection 10 is mandatory in this State for foreign insurance companies.
c. 	Analysis as to PJ Moving Defendants Except AXIS
93. 	Here, it is undisputed that, as confirmed by the Court at the Hearing, all
PJ Moving Defendants except AXIS are licensed to conduct insurance business in
North Carolina. 	(Tr. 30:16–21, 95:8–12.) 	It is also undisputed that all PJ Moving
Defendants except AXIS filed an instrument appointing the Commissioner as their
agent on whom any legal process under N.C.G.S. § 58-16-30 may be served.
94. 	Further, the record demonstrates that all PJ Moving Defendants accepted
service of process through the Commissioner pursuant to N.C.G.S. § 58-16-30. 	(See
Konkel Aff. ¶ 22; Konkel Aff. Ex. 21 (providing the affidavit of Plaintiffs’ counsel
indicating that the civil summonses and complaints were mailed to the Insurance
Section of the North Carolina Department of Justice, and providing that acceptance
of service was made by the Special Deputy for Service of Process on behalf of Mike
Causey, the current Commissioner); Tr. 59:23–60:1.) 	Each of the letters indicating
acceptance of service were filed by Plaintiffs in opposition to the Motion to Dismiss,
indicating that service was accepted on 14 November 2022. (Konkel Aff. Ex. 21.)
95. 	Therefore, the Court concludes that all PJ Moving Defendants except AXIS
consented to suit in this State by completing the statutorily required registration

procedures for foreign corporations. 	Doing so rendered Defendants essentially at
home in this State and Defendants submitted to suit in this State. 	See Espin v.
Citibank, N.A., 2023 U.S. Dist. LEXIS 176241, at *10–11 (E.D.N.C. Sept. 29, 2023)
(determining that the court has general personal jurisdiction over Citibank, and that
“[t]his conclusion does not offend due process, even if it took Citibank by surprise, as
Citibank has taken full advantage of its opportunity to do business in North
Carolina”).
96. 	As a result, the Court’s exercise of general personal jurisdiction over these
defendants is proper. 	The Motion to Dismiss is therefore DENIED in part, to the
extent it requests dismissal of PJ Moving Defendants, except AXIS, for lack of
personal jurisdiction.
d. 	Analysis as to AXIS
97. 	AXIS is a surplus lines insurance company and is subject to different
licensing requirements than foreign insurance companies, as set forth in the North
Carolina Surplus Lines Act, N.C.G.S. § 58-21-1 et seq. 	Therefore, the Court must
address AXIS separately.
98. 	North 	Carolina 	General 	Statutes 	§ 58-21-2 	provides 	that, 	unless
“specifically referenced in a particular section of this Chapter, no sections contained
in Articles of this Chapter other than this Article apply to surplus lines insurance,
surplus lines licensees, nonadmitted domestic surplus lines insurers, or nonadmitted
insurers.” N.C.G.S. § 58-21-2.

99. 	Article 21 goes on to provide the following:
A surplus lines insurer may be sued upon any cause of action arising in
this State, under any surplus lines insurance contract made by it or
evidence of insurance issued or delivered by the surplus lines licensee,
pursuant to the procedure provided in [N.C.]G.S. [§ ]58-16-30. Any such
policy issued by the surplus lines licensee shall contain a provision
stating the substance of this section and designating the person to whom
the Commissioner shall mail process.
N.C.G.S. § 58-21-100(a). 	“Each surplus lines insurer engaging in surplus lines
insurance shall be deemed thereby to have subjected itself to this Article.” N.C.G.S.
§ 58-21-100(b). This statute has yet to be interpreted by the courts of this State, and
therefore, the Court is presented with an issue of first impression.
100. 	“Statutory interpretation properly begins with an examination of the plain
words of the statute.” Correll v. Div. of Soc. Servs., 332 N.C. 141, 144 (1992) (citation
omitted). 	“If the statutory language is clear and unambiguous, the court eschews
statutory construction in favor of giving the words their plain and definite meaning.”
State v. Beck, 359 N.C. 611, 614 (2005).
101. 	Here, the plain meaning of the statute is clear. 	Given that § 58-21-100(a)
specifically references the procedures set forth in § 58-16-30 to achieve service of
process upon foreign surplus lines insurance companies, (see supra ¶¶ 91, 99), and
that the policies issued by that company must include a provision that instructs the
Commissioner where to subsequently send process it may receive, it logically follows
that the legislature intended service of process to be made upon the Commissioner as
the agent of the foreign insurance company. See Beck, 359 N.C. at 614 (“The primary
endeavor of courts in construing a statute is to give effect to legislative intent.”). As

a result, the Court interprets the statute to mean that a surplus lines insurer may be
sued in this State upon a cause of action arising here under any surplus lines
insurance contract made by that insurer, so long as service of process is made upon
the Commissioner pursuant to N.C.G.S. § 58-16-30.
102. 	This parallels the licensure requirement for insurance companies set forth
in § 58-16-5, but without requiring action by the insurer in order to obtain a license
to do business in this State. 	While there are separate licensure requirements set
forth in Article 21, it appears that engaging in surplus lines insurance in this State
is enough to be subject to this section.
103. 	Thus, under the limited circumstance where the surplus lines insurer is
sued in this State under a policy issued by it, and service of process is made upon the
Commissioner, the surplus lines insurer has consented to general jurisdiction in this
State. 	This interpretation is supported by the statutory requirement that each
contract of insurance issued by the insurer must contain a provision designating the
person to whom the Commissioner shall mail process.
104. 	Here, the record demonstrates that the AXIS policy issued to The Kroger
Co. for the period 25 January 2016 to 25 January 2017 was filed by Plaintiffs in
opposition to the Motions. (Chung Aff. Ex. 84.) The AXIS policy contains a “Service
of Suit Clause” which provides that AXIS designates the “Commissioner or Director
of Insurance, or his/her designee, as its true and lawful attorney upon whom may be
served any lawful process in any action . . . instituted by [the insured] . . . under this

Policy against the Company arising out of this Policy,” and then goes on to provide a
Georgia address for Claims Administration. (Chung Aff. Ex. 84 at 10.)
105. 	The record also demonstrates that AXIS accepted service of process for this
lawsuit through the Commissioner pursuant to N.C.G.S. § 58-16-30. (See Konkel Aff.
Ex. 21 at 14 (providing the Acceptance of Service of Process for AXIS).)
106. 	The Court, therefore, is unable to imagine how this procedure differs from
that for foreign insurance companies as set forth in the previous section. (See supra
Part IV.A.2.c.) While the North Carolina Surplus Lines Act does not expressly require
foreign surplus lines insurers to appoint the Commissioner as its agent in order to do
business in this State, it appears to implicitly require that appointment. 	In fact, it
goes so far as to require the appointment in writing within endorsements like AXIS’s
Service of Suit provision. (See Chung Aff. Ex. 84 at 10.) To conclude otherwise would
fail to give effect to the legislative intent, particularly because the Surplus Lines Act
expressly rejects all other Articles in the Chapter concerning insurance companies
but specifically references § 58-16-30 as the exception to that general rule.
107. 	The Court concludes that AXIS, by doing business in this State, agreed to
be subject to the laws and regulations set forth herein. Doing so constituted a consent
to the exercise of general personal jurisdiction over it by North Carolina courts
because the statutory framework requires service of process upon the Commissioner
as AXIS’s agent for causes of action arising in this State under insurance contracts
made by it. 	Therefore, the Motion to Dismiss is DENIED in part to the extent it
requests dismissal of AXIS for lack of personal jurisdiction.

B. 	Motion to Dismiss Pursuant to Rule 12(b)(6)
108. 	Defendants argue that the Court should refuse to hear this case because
the Kroger Plaintiffs’ filing of this action constituted forum shopping, and courts of
this State have rejected declaratory judgment suits in like circumstances.14 	(Br.
Supp. Mot. Dismiss 23.) As an initial matter, Defendants do not challenge Plaintiffs’
standing to assert a declaratory judgment claim pursuant to N.C.G.S. § 1-254, and
therefore, the Court turns directly to its discretionary authority to dismiss the claim
under § 1-257.
109. 	“Under North Carolina law, a declaratory judgment is a statutory remedy
that grants a court the authority to declare rights, status, and other legal relations,
when an actual controversy exists between parties to a lawsuit.” 	Coley v. Its
Thundertime LLC, 2016 NCBC LEXIS 55, at *10 (N.C. Super. Ct. July 15, 2016)
(cleaned up). The Court may decline to “enter a declaratory judgment or decree where
such judgment or decree, if rendered or entered, would not terminate the uncertainty
or controversy giving rise to the proceeding . . . .” N.C.G.S. § 1-257. The decision to
do so rests in the sound discretion of the trial judge. Augur v. Augur, 356 N.C. 582,
587 (2002).
110. 	“[A] declaratory judgment should issue (1) when it will serve a useful
purpose in clarifying and settling the legal relations at issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity and controversy giving
rise to the proceeding.” 	Id. at 588 (cleaned up). 	The Court must consider that “[a]
14 All Defendants except U.S. Fidelity join in the Motion to Dismiss pursuant to Rule 12(b)(6).
(Mot. Dismiss 1–2 n.1.)

declaratory remedy should not be invoked to try a controversy by piecemeal, or to try
particular issues without settling the entire controversy.” 	Coca-Cola Bottling Co.
Consol. v. Durham Coca-Cola Bottling Co., 141 N.C. App. 569, 578 (2000) (cleaned
up). 	Further, a party “should not be permitted to bring a declaratory suit involving
overlapping issues in a different jurisdiction as a strategic means of obtaining a more
preferable forum.” 	Id. at 579. 	Put more simply, North Carolina Courts “cannot
condone using the Declaratory Judgment Act to obtain a more preferable venue in
which to litigate a controversy.” Id. at 581.
111. 	“[W]hen the record shows that there is no basis for declaratory relief,” the
Court may dismiss a declaratory judgment action through a Rule 12(b)(6) motion.
Kirkman v. Kirkman, 42 N.C. App. 173, 176 (1979). The Court, in deciding whether
to issue a declaratory judgment, may consider information related to another pending
action involving overlapping issues. See Coley, 2016 NCBC LEXIS 55, at *12–15.
112. 	Defendants contend that the Court should exercise its discretion to dismiss
this action in full because (1) “the limits of its jurisdiction and the pendency of the
Ohio [Insurance] Action mean that nothing close to complete relief is available to
Kroger in this Court[,]” (Br. Supp. Mot. Dismiss 23); and (2) failing to dismiss would
“reward Kroger’s forum shopping” because Kroger brought this suit as a means of
obtaining a more preferable forum, (Br. Supp. Mot. Dismiss 26–27).
113. 	Defendants appear to take issue only with the Kroger Plaintiffs’ request for
declaratory judgment, contending that the timing of Plaintiffs’ filing of this action is
suspect, and arguing that the Kroger Plaintiffs communicated with their insurers for

five years but failed to file an action to resolve their dispute until shortly after the
Ohio Insurance Action commenced. 	(Br. Supp. Mot. Dismiss 27.) 	Defendants also
argue that the Kroger Plaintiffs’ inclusion of the HT Plaintiffs was a strategic choice
which amounts to impermissible forum shopping. (Br. Supp. Mot. Dismiss 27.)
114. 	In response, Plaintiffs contend that this Court is the only forum which may
provide complete relief and terminate the uncertainty regarding the insurance
coverage dispute. 	(Br. Opp. Mot. Dismiss 27.) 	Plaintiffs argue that (1) the Ohio
Insurance Action is less comprehensive because it includes fewer insurers and does
not include the HT Plaintiffs, and (2) there has been no forum shopping by Plaintiffs,
but rather that Defendants’ “insistence that Ohio law governs their contracts, against
all evidence, reveals them to be guilty of the very sin they ascribe to Plaintiffs: forum
shopping.” (Br. Opp. Mot. Dismiss 28.)
115. 	Since the Kroger Plaintiffs and the HT Plaintiffs each seek a declaration
from this Court as to their rights, if any, under the terms of the various insurance
policies issued by Defendants, and because Defendants appear to take issue largely
with the Kroger Plaintiffs rather than the HT Plaintiffs, the Court, in its discretion,
elects to address them separately.15
15 The Court is unaware of any precedent in this State which would support the proposition
that N.C.G.S. § 1-257 may be analyzed on a plaintiff-by-plaintiff basis, nor of the inverse,
that the Court may not analyze it in that manner. However, the standard for applying § 1-
257 is discretionary. Thus, the Court determines that it may exercise its discretion to apply
the statute to particular facts on a plaintiff-by-plaintiff basis.

1. 	The Kroger Plaintiffs
116. 	The Court agrees with Defendants that this action will not settle the entire
controversy giving rise to the proceeding as this action relates to the Kroger Plaintiffs
because the issue of the Kroger Plaintiffs’ rights under their insurance policies issued
by Defendants is already being litigated in the Ohio Insurance Action.
117. 	In the Ohio Insurance Action, The Kroger Co.’s insurers seek a declaration
that they have no duty to defend the Kroger Plaintiffs against the Underlying Opioid
Lawsuits, have no duty to indemnify the Kroger Plaintiffs, and seek a declaration
that no coverage is owed to the Kroger Plaintiffs under any of the insurance policies
issued to them. (St. Jeanos Aff. Ex. J at ¶¶ 45–50.)
118. 	In this action, the Kroger Plaintiffs seek a decree from the Court that
Defendants have a duty to pay or reimburse defense costs, and settlement or
judgment costs associated with the Underlying Opioid Lawsuits. (Am. Compl. ¶ 111.)
119. 	Thus, this action and the Ohio Insurance Action are disputes between many
of the same parties seeking a declaration from two courts regarding whether
Defendants have a duty to indemnify the Kroger Plaintiffs under the insurance
policies issued to The Kroger Co. (Compare, St. Jeanos Aff. Ex. J at ¶¶ 44, 47, with,
Am. Compl. ¶ 111.) 	Therefore, this action cannot settle the entire underlying
controversy as it relates to the Kroger Plaintiffs’ rights, if any, under their insurance
policies because the Ohio Insurance Action was first filed, remains pending, and will
address the same or similar issues.

120. 	Our Courts have been clear that a party “should not be permitted to bring
a declaratory suit involving overlapping issues in a different jurisdiction as a
strategic means of obtaining a more preferable forum.” Coca-Cola, 141 N.C. App. at
579. The Court agrees with Defendants that, as to the Kroger Plaintiffs, the filing of
this action appears to be an attempt by them to avoid their home state of Ohio and
the Supreme Court of Ohio’s holding in Acuity.16
121. 	In light of these considerations, the Court determines that it is appropriate
for the Court to decline to enter a declaratory judgment regarding the Kroger
Plaintiffs’ 	rights, 	if 	any, 	under 	the 	insurance 	policies 	they 	purchased 	from
Defendants. 	The Court’s decree would not end the uncertainty giving rise to the
proceeding, 	and 	it 	appears 	that 	the 	Kroger 	Plaintiffs 	may 	be 	attempting 	to
circumvent their home state to obtain a more preferable venue.
122. 	Therefore, the Court hereby GRANTS in part the Motion to Dismiss and
declines to grant declaratory relief as it relates to the Kroger Plaintiffs. As a result,
the Kroger Plaintiffs’ claims for declaratory judgment against Defendants are
DISMISSED. 	This includes the Kroger Plaintiffs’ claims against U.S. Fidelity,
notwithstanding its failure to join in the Motion to Dismiss, because the Court will
16 As the Court has already explained, the Kroger Plaintiffs are Ohio corporations that filed
this suit shortly after the Acuity decision was filed, and after certain Defendants filed suit
against the Kroger Plaintiffs in Ohio. 	Importantly, the Acuity decision held that the
“government[al entities] d[id] not seek damages because of bodily injury” against a wholesale
distributor of drugs, and thus the insurance company did not owe “a duty to defend it in the
underlying suits.” Acuity, 205 N.E.3d at 474. As a result, the Kroger Plaintiffs’ may have
filed this action to avoid the application of Acuity when the Ohio court ultimately interprets
their insurance policies and rights to coverage, if any.

not reward attempted forum shopping, particularly when the Kroger Plaintiffs can
presumably seek to join U.S. Fidelity as a party to the Ohio Insurance Action.
123. 	The Court’s decision in this regard is expressly contingent upon each of the
insurers affected by this determination, who are not already parties in the Ohio
Insurance Action, being able to join in that proceeding. 	In the event the Kroger
Plaintiffs raise any time-related defenses, based on the period between the initial
filing of the Ohio Insurance Action and the filing by the affected insurers of a motion
to join that action, the Court may reconsider its discretionary ruling here upon the
filing of an appropriate motion.
2. 	The HT Plaintiffs
124. 	The facts relevant to the HT Plaintiffs are notably different.
125. 	First, and perhaps most importantly, the HT Plaintiffs are not party to the
Ohio Insurance Action, and as far as the Court is aware, no party to that action has
sought to join the HT Plaintiffs in that action. (See St. Jeanos Aff. Exs. J–K.)
126. 	Next, 	based 	on 	the 	allegations 	in 	the 	Amended 	Complaint, 	twenty
Defendants allegedly issued insurance policies to the HT Plaintiffs, including: ACE
American; Federal Insurance; Allied World; American Guarantee; Great American
Alliance Insurance Company; Great American Assurance Company; Great American
Insurance Company; Great American NY; Travelers Indemnity; Travelers Property;
Liberty Underwriters; Ohio Casualty; St. Paul Fire; Mitsui Sumitomo; Twin City;
U.S. Fidelity; U.S. Fire; Westport; XL America; and Zurich. (See supra Part II.C.) Of
those Defendants, only nine are parties to the Ohio Insurance Action: ACE American,

Federal Insurance, Allied World, American Guarantee, Great American Insurance
Company, Great American NY, St. Paul Fire, U.S. Fidelity,17 and XL America.
(St. Jeanos Aff. Exs. J–K.) 	Thus, eleven of the HT Plaintiffs’ insurers are not party
to the Ohio Insurance Action.
127. 	Further, the HT Plaintiffs’ initiation of this action does not reek of forum
shopping. The HT Plaintiffs are at home in this State, and there is no contention or
reason to suspect that the HT Plaintiffs are fleeing a lawsuit to which they are not a
party, initiated in a state in which they are not registered to do business. (See Mecia
Aff. ¶ 22.)
128. 	Further, there is no indication that the insurance policies issued to the HT
Plaintiffs by their aforementioned insurers are being litigated in another forum.
Rather, the Ohio Insurance Action names only the Kroger Plaintiffs, and seeks only
a declaration that the insurers owe no duties to the Kroger Plaintiffs. 	While
Defendants assert that the Ohio Insurance Action is “a comprehensive action that
will resolve essentiallyall [sic] claims between Kroger and its insurers[,]” and that
may very well be true, the Ohio Insurance Action has no bearing on the HT Plaintiffs
or the meaning of their insurance policies.
129. 	A decree of this Court as to the meaning of the HT Plaintiffs’ insurance
policies would serve a useful purpose in clarifying and settling the legal relations at
issue, and it would terminate the uncertainty and controversy giving rise to the
proceeding, at least as to directly affected parties, as required by N.C.G.S. § 1-257.
17 As noted previously, U.S. Fidelity does not seek dismissal of Plaintiffs’ Amended Complaint
and joins only in the Motion to Stay.

Additionally, the HT Plaintiffs have separate and distinct rights in the insurance
policies issued to them, particularly as to the insurance policies issued prior to the
merger with The Kroger Co., meaning this case will not result in piecemeal litigation.
130. 	Therefore, the Court, in its discretion, hereby DENIES in part the Motion
to Dismiss because the Court can terminate the controversy and afford relief from
uncertainty as it relates to the HT Plaintiffs’ interests in this proceeding.
C. 	Motion to Stay
131. 	As a preliminary matter, because the Court has granted Defendants’
Motion to Dismiss in part pursuant to Rule 12(b)(6) as it relates to the Kroger
Plaintiffs’ claims for relief, the Motion to Stay, as it relates to the Kroger Plaintiffs,
is DENIED in part as moot. 	The claims between the Kroger Plaintiffs and the
Defendants that issued insurance policies only to them have been dismissed.
132. 	All 	Defendants 	join 	in 	the 	Motion 	to Stay. 	(See 	Mot. 	Stay 	1 	n.1.)
Defendants ask the Court to stay this action pursuant to N.C.G.S. § 1-75.12 in favor
of the Ohio Insurance Action. (Defs.’ Br. Supp. Mot. Stay 14, ECF No. 138 [“Br. Supp.
Mot. Stay”].) 	Defendants argue that a stay would permit the parties to focus their
dispute on the Kroger Plaintiffs, “rather than its all but irrelevant Harris Teeter
subsidiary.” (Br. Supp. Mot. Stay 14.)
133. 	North Carolina General Statutes § 1-75.12 provides that,
[i]f, in any action pending in any court of this State, the judge shall find
that it would work substantial injustice for the action to be tried in a
court of this State, the judge on motion of any party may enter an order
to stay further proceedings in the action in this State. A moving party
under this subsection must stipulate his consent to suit in another

jurisdiction found by the judge to provide a convenient, reasonable and
fair place of trial.
N.C.G.S. § 1-75.12(a). 	“Entry of an order under [N.C.]G.S. [§ ]1-75.12 is a matter
within the sound discretion of the trial judge[.]” Home Indem. Co. v. Hoechst-Celanese
Corp., 99 N.C. App. 322, 325 (1990).
134. 	In deciding whether to grant a stay, our courts consider the following
convenience factors and policy considerations:
(1) the nature of the case, (2) the convenience of the witnesses, (3) the
availability of compulsory process to produce witnesses, (4) the relative
ease of access to sources of proof, (5) the applicable law, (6) the burden
of litigating matters not of local concern, (7) the desirability of litigating
matters of local concern in local courts, (8) convenience and access to
another forum, (9) choice of forum by plaintiff, and (10) all other
practical considerations.
Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 356
(1993) (citation omitted). 	“It is not necessary to consider each factor or to find that
every factor weighs in favor of a stay.” Cardiorentis AG v. IQVIA, Ltd., 2018 NCBC
LEXIS 243, at *7 (N.C. Super. Ct. Dec. 31, 2018), aff’d per curium, 373 N.C. 309 (2020)
(citations omitted). 	“Rather, the trial court must be able to conclude that (1) a
substantial injustice would result in the absence of a stay, (2) the stay is warranted
by the factors that are relevant and material, and (3) the alternative forum is
convenient, reasonable, and fair.” Id. at *7–8 (citation omitted).
135. 	The 	Court, 	having 	considered all 	the 	factors 	deemed relevant 	to 	its
determination, determines that a stay is not warranted or reasonable as related to
the HT Plaintiffs’ claims. The Court focuses its analysis below on the factors relevant
and material to this decision.

1. 	Plaintiffs’ Choice of Forum
136. 	“Our courts generally begin with the presumption that a plaintiff’s choice
of 	forum 	deserves 	deference[,]” 	but 	the 	amount 	of 	deference 	“varies 	with 	the
circumstances.” 	Cardiorentis, 2018 NCBC LEXIS 243, at *8. 	This Court has held
that, when a plaintiff sues outside its home forum, that choice deserves less
deference. Id. (citation omitted). The inverse is also true, and a plaintiff’s choice to
sue in its home forum is given great deference. La Mack v. Obeid, 2015 NCBC LEXIS
24, at **16–17 (N.C. Super. Ct. Mar. 5, 2015) (“[A] plaintiffs’ choice of forum
ordinarily is given great deference, especially when plaintiffs select their home forum
to bring suit.”).
137. 	The HT Plaintiffs elected to initiate this suit in their home forum, and
therefore, this factor weighs against granting a stay.
2. 	Availability of Compulsory Process to Produce Witnesses &
the Relative Ease of Access to Sources of Proof
138. 	Here, 	Defendants 	have 	not 	argued 	that 	“nonparty 	witnesses 	would
participate only if compelled to do so,” and therefore, “the availability of compulsory
process should be given little weight in the overall balancing scheme[.]” Cardiorentis,
2018 NCBC LEXIS 243, at *20 (cleaned up).
139. 	To the extent discovery is necessary in this matter, the HT Plaintiffs
maintain their corporate headquarters in Matthews, North Carolina. 	(Sullivan Aff.
Ex. NN at 1.) 	Defendants contend that “most of the relevant witnesses and
documents are located at Kroger’s corporate headquarters in Cincinnati, Ohio[,]”

including “a majority of Harris Teeter’s corporate officers[.]” 	(Br. Supp. Mot. Stay
28–29 (emphasis removed).)
140. 	Notwithstanding that contention, this case is primarily an insurance
contract dispute which will require the Court and, if necessary, a jury, to interpret
those contracts and declare what rights, if any, the HT Plaintiffs have in them. See,
e.g., Northrop Corp. v. Am. Motorists Ins. Co., 270 Cal. Rptr. 233, 239 (Cal. Ct. App.
1990) (explaining that insurance coverage disputes “principally concern questions of
law and language, not physical fact, and involve more paper than live witnesses”).
141. 	The Court agrees with Plaintiffs that some of the most important evidence
in this action will be documents that may be exchanged electronically between
counsel and which are accessible in any forum. 	(Pls.’ Br. Opp. Mot. Stay 27, ECF
No. 187 [“Br. Opp. Mot. Stay”].) 	Further, Defendants are insurance companies
incorporated across the country and their corporate representatives or counsel will
be required to travel regardless of where this action is litigated. 	(See Br. Opp. Mot.
Stay 27.)
142. 	This factor does, however, weigh slightly in favor of a stay because more of
the HT Plaintiffs’ potential corporate witnesses reside in Ohio than in North
Carolina.
3. 	Desirability of Litigating Matters of Local Concern in Local
Courts
143. 	In evaluating this factor, the Court must consider the nature of the case
and 	whether 	North 	Carolina 	or 	Ohio 	have 	a 	local 	interest 	in 	resolving 	the
controversy.

144. 	Having decided the Motion to Dismiss, this matter now concerns the HT
Plaintiffs’ insurance coverage rights, if any, under the policies the HT Plaintiffs
purchased 	from 	certain 	Defendants. 	Further, 	the 	record 	before 	the 	Court
demonstrates that, as of the filing of the Motion to Stay, the HT Plaintiffs were named
as 	defendants 	in 	only 	one 	Underlying 	Opioid 	Lawsuit—the 	Durham 	County
Bellwether—which was initiated in the Middle District of North Carolina. 	(See
St. Jeanos Aff. Ex. F at 1 n.3, n.6, 19.)
145. 	The HT Plaintiffs operate grocery stores across North Carolina, with over
half their stores located here and operating 120 pharmacies in this State. (Mecia Aff.
¶¶ 18–20.) Further, the HT Plaintiffs are not registered to do business in Ohio and
have never conducted business in Ohio. 	(Mecia Aff. ¶ 22.) 	While the HT Plaintiffs
are now wholly owned subsidiaries of The Kroger Co., the HT Plaintiffs own and
operate their stores with separate corporate formalities. (Mecia Aff. ¶¶ 22–24; Chung
Aff. ¶¶ 15–16.)
146. 	The Court concludes that this factor weighs against granting a stay. North
Carolina and its residents have a stronger interest in this Court determining the HT
Plaintiffs’ rights under their insurance policies, particularly given that the only
Underlying Opioid Lawsuit they are party to was initiated by a governmental entity
in this State.
4. 	Fair and Reasonable Forum
147. 	As a prerequisite to the entry of a stay, the moving parties “must stipulate
[their] consent to suit in another jurisdiction.” N.C.G.S. § 1-75.12(a). This condition

is met here, with the exception of Great American Alliance and Great American
Assurance, 	which 	are 	Ohio 	companies. 	(Tr. 	133:12–16; 	ECF 	Nos. 	141.3–.21
(affidavits of counsel confirming the Defendants that are not party to the Ohio
Insurance Action consent to being joined there).)
148. 	The statute also requires that the alternative forum be reasonable and fair.
Id. This too is satisfied. The Court is not concerned that the Ohio courts would fail
to be fair and impartial. Therefore, this factor weights in favor of granting a stay.
5. 	Applicable Law
149. 	“State and federal courts alike agree that the need to apply foreign law
favors a stay in a forum non conveniens analysis.” Cardiorentis, 2018 NCBC LEXIS
243, at *20 (citations omitted). 	“To evaluate this factor, the Court need not
definitively determine which law governs[.]” Id. at *21.
150. 	Defendants contend that, under the doctrine of lex loci contractus, the
substantive law of the state where the last act to make a binding insurance contract
occurred governs the interpretation of the contract. 	(Br. Supp. Mot. Stay 26 (citing
Fortune Ins. Co. v. Owens, 351 N.C. 424, 428 (2000)).) Defendants state that the place
of delivery is the place where the insured resides at the time of the issuance of the
policy controls, in the absence of specific evidence reflecting a contrary intention. (Br.
Supp. Mot. Stay 26.)
151. 	Using 	this 	reasoning, 	the 	HT 	Plaintiffs’ 	policies 	allegedly 	providing
coverage for the periods prior to 2014 would be governed by North Carolina law.

152. 	Additionally, Plaintiffs point out in the briefing on the Motion to Stay that
Defendants’ insurance policies lack choice of law provisions, (Br. Opp. Mot. Stay 18),
and the Court’s review of the nearly 145 insurance policies in the record reflected the
same.
153. 	Plaintiffs cite to N.C.G.S. § 58-3-1, which provides that all insurance
contracts “on property, lives, or interests in this State shall be deemed to be made
therein, and all contracts of insurance the applications for which are taken within
the State shall be deemed to have been made within this State and are subject to the
laws 	thereof.” 	N.C.G.S. 	§ 58-3-1. 	Thus, 	North 	Carolina 	must 	have 	a 	“close
connection” to the insured loss. 	Collins & Aikman Corp. v. Hartford Accident &
Indem. Co., 335 N.C. 91, 94–95 (1993). 	“The test is simply stated but not so simply
applied as its application revolves around the facts of particular cases from which no
formula may be easily derived.” 	Am. Realty Advisors v. Lexington Ins. Co., 2019
NCBC LEXIS 59, at *8 (N.C. Super. Ct. Sept. 10, 2019).
154. 	It is reasonably possible that the undisputed facts may support the
application of North Carolina law, with respect to the insurance policies the HT
Plaintiffs purchased. 	However, the Court lacks sufficient facts to make that
determination, given the early stage of this litigation.
155. 	Therefore, the Court concludes that this factor weighs against entry of a
stay, as it is reasonably possible that a majority of the insurance policies the HT
Plaintiffs purchased from Defendants will require this Court to apply North Carolina
law.

156. 	After considering the relevant factors, the Court, in its sound discretion,
determines that this case should not be stayed pursuant to N.C.G.S. § 1-75.12(a) as
Defendants have not demonstrated that continuing the prosecution of this action
would work a substantial injustice on them. See Muter v. Muter, 203 N.C. App. 129,
134 (2010) (explaining that the Court is “not required to decide the most convenient
or ideal venue for resolving this matter but only to determine whether defendant[s]
proved that proceeding in North Carolina would work a substantial injustice on
[them]”).
157. 	The Court’s dismissal of a portion of this action has changed the nature of
the case from one concerning primarily issues which may be appropriately litigated
in Ohio, to one that concerns plaintiffs who are at home in this State and the harm
alleged to have largely occurred—and thus allegedly requiring insurance coverage—
in North Carolina. Therefore, the Motion to Stay is hereby DENIED. Based on the
Court’s analysis of the Lawyers Mutual factors, a stay is not warranted because a
substantial 	injustice 	will 	not 	result 	from 	denial 	of 	the 	Motion 	to 	Stay,
notwithstanding the fact that Ohio is a fair and reasonable alternative forum.
V. 	CONCLUSION
158. 	For the foregoing reasons, the Court hereby GRANTS in part and DENIES
in part the Motions as follows:
a. 	Defendants’ 	Motion 	to 	Dismiss 	pursuant 	to 	Rule 	12(b)(2) 	is
DENIED;

b. 	Defendants’ 	Motion 	to 	Dismiss 	pursuant 	to 	Rule 	12(b)(6) 	is
GRANTED in part to the extent it seeks dismissal of the Kroger Plaintiffs’
claims for declaratory judgment pursuant to N.C.G.S. § 1-75.12(a). Except
as 	expressly 	granted, 	Defendants 	Motion 	to 	Dismiss 	pursuant 	to
Rule 12(b)(6) is otherwise DENIED; and
c. 	Defendants’ Motion to Stay is DENIED.
IT IS SO ORDERED, this the 10th day of October, 2023.
/s/ Michael L. Robinson
Michael L. Robinson
Special Superior Court Judge
for Complex Business Cases